In this federal habeas corpus petition, the petitioner, Marcus Suarez, insists that his two state trial counsel were constitutionally ineffective for failing to file appeals on his behalf after he was sentenced to an aggregate term of 14-28 years imprisonment following his guilty pleas to a series of state drug trafficking charges. In this setting the legal and factual lynchpin for Suarez’s claim of ineffective assistance of counsel is his assertion that both counsel failed to consult with him and follow his specific instruction that they lodge an appeal on his behalf following the imposition of these state sentences.

These precise issues were the subject of a hearing conducted with respect to Suarez’s state Post-Conviction Relief Act (PCRA) petition. At this hearing, Suarez and his two counsel testified. For their part, both defense counsel consistently stated that Suarez never requested that they file an appeal on his behalf, and denied receiving letters which Suarez produced long after the fact, letters that Suarez claimed to be contemporaneous requests to his counsel to appeal his conviction. Indeed, one of Suarez’s former trial counsel characterized this purported letter as a fraud, correspondence manufactured after-the-fact to support a meritless claim that the petitioner had requested that counsel take an appeal on his behalf.

Presented with these starkly conflicting claims regarding a factual matter which rested at the heart of Suarez’s post-conviction petition, his claim that he timely requested that counsel appeal on his behalf, the state trial court found that Suarez’s claims that he made timely requests of counsel to appeal were not credible, and concluded consistent with the greater weight of the evidence at the PCRA hearing that Suarez did not request that his counsel file an appeal on his behalf. This factual finding was then affirmed by the state appellate court, which also found that the PCRA hearing record revealed that both trial counsel had adequately consulted with Suarez about his appellate rights and options prior to Suarez’s decision electing not to file an appeal.

It is against this factual background that Suarez now reprises these ineffective assistance of counsel claims in this federal habeas corpus petition. However, given the deferential standard of review which we are obliged to apply to the state court factual determinations, we conclude that Suarez cannot show an entitlement to federal post-conviction relief because the state court factual findings regarding his failure to timely seek an appeal are presumed to be correct, and Suarez has not rebutted this presumption by clear and convicting evidence. 28 U.S.C. §2254(e)(1).

II. Statement of Facts and of the Case

The pertinent factual background of this case can be simply stated: In 2007 Marcus Suarez faced a series state charges relating to alleged drug trafficking in Luzerne County, Pennsylvania. Suarez was represented by two different attorneys in connection with these pending state charges: Nandakumar Palissery, Esq., who had been retained by Suarez to represent him on some drug matters; and Vito DeLuca, Esq., who was appointed to represent Suarez in additional drug cases brought against the petitioner.

On January 23, 2007, Suarez pleaded guilty to an array of state drug charges as part of a negotiated plea agreement with the Commonwealth. (Doc. 22-1.) At the time of this guilty plea, the trial court engaged in a thorough colloquy with Suarez. In this colloquy the penalties for each of these offenses was carefully detailed, (id.), and the trial court specifically advised Suarez that “you are facing significant jail time[.] Do you under that?” to which Suarez replied: “yes”. (Id., p.7.) The trial court also specifically explained to Suarez that a number of offenses individually carried maximum penalties of 15 to 30 years in prison, and Suarez acknowledged that he faced such penalties upon his guilty pleas. (Id.) The trial court also warned Suarez that these penalties could be imposed consecutively upon the petitioner, and Suarez acknowledged that he understood that he potentially faced consecutive jail terms. (Id.) Knowing all of this, and with a clear understanding of the penalties he faced, Suarez pleaded guilty to these offenses. (Id.)

Suarez then proceeded to sentencing on these charges on March 1, 2007. At sentencing the trial court heard from Suarez, his counsel, the assistant district attorney, and a prison chaplain. (Doc. 22-2.) Ultimately the court imposed a sentence of 14 to 28 years imprisonment upon Suarez, a sentence which fell below the penalties outlined for Suarez at the time of his guilty plea. (Id.) In imposing this sentence the trial court observed that Suarez was a “professional drug dealer” who had been charged seven time with drug trafficking in Luzerne County. (Id.) The court also noted that the sentences imposed upon Suarez all fell within the standard sentencing range under the state sentencing guidelines. (Id.) Finally, the court advised Suarez on the record of his post-conviction and appeals rights, notifying Suarez that he was required to file an appeal within 30 days of imposition of sentence. (Id.)

Suarez did not timely appeal this sentence. Instead, one year later, on March 20, 2008, Suarez filed a pro se petition under Pennsylvania’s Post Conviction Relief Act, (PCRA), alleging that his two trial counsel had abandoned him and failed to follow his explicit instructions that they file appeals on his behalf. (Doc. 22-6.) On July 23, 2008, the trial court conducted a hearing on Suarez’s petition, a hearing at which Suarez, and both of his trial counsel testified. (Doc. 22-5.)

At this hearing the trial court was presented with two starkly contrasting factual narratives. For his part, Suarez insisted that he had expressly requested that counsel appeal his conviction and sentence. (Id.) While Suarez presented no independent eyewitnesses to corroborate his account, he tendered to the court letters he had purportedly written in a timely fashion to both of his defense counsel demanding that they appeal his conviction. (Id.)

In contrast, attorneys DeLuca and Palissery both denied Suarez’s claims that he requested that they take an appeal on his behalf. (Id.) Instead each attorney explained that he met with Suarez following the sentencing, consulted with him, and advised him of the low probability of success on an appeal of a sentence which fell within the standard sentencing range prescribed by state sentencing guidelines. (Id.) While both counsel acknowledged that Suarez was disappointed by the sentence, each attorney independently testified that, following this consultation, Suarez did not request an appeal. (Id.) Indeed, counsel testified that they independently verified with one another that Suarez had declined to appeal after they met separately with the petitioner. (Id.)

As for Suarez’s claims that he had timely written to counsel directing them to appeal, both counsel denied receiving the letters Suarez claimed to have written and one counsel, Attorney DeLuca, explained that the letter which Suarez presented to the court was: “a fraud. I don’t know what else to say. He obviously had written this up at some point afterwards. I did not receive it at the Public defender’s Office.” (Id., p. 22-23.)

At the close of this hearing, the trial judge issued an opinion and order denying Suarez&rsquo;s petition. (Id.) This trial court ruling rested upon its factual finding that Suarez did not request that counsel file an appeal on his behalf. (Id.) In this regard, the trial court credited the testimony of both counsel, and specifically found Suarez’s claims regarding his requests, and the letters he claimed he had ...

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